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2. Appearance.-Filing notice of appearance with the clerk is an appearunce entered (Field v. Blair, 1 Code Rep. N. S. 292); so is a motion to discharge from arrest (Dart v. Arnis, 19 How. 429), or resisting a motion for an injunction (Cooley v. Lawrence, 5 Duer, 605; 12 How. 176); but giving bail on arrest is not (Durand v. Hollins, 3 Duer, 686); nor is a mere notice of appearance or retainer (Field v. Blair, 1 Code Rep. N. 8. 292; Norton v. Hayes, 4 Denio, 245). There must be some act done and entered in court (id.). One defendant may appear and defend alone to enable him to remove the cause (Livingston v. Gibbons, 4 Johns. Ch. 94 ; Norton v. Hayes, 4 Denio, 245).
b. Motion for Order.—The application for the order should be on notice, or order to show cause (Disbrou v. Driggs, 8 Abb. 306, n.; Bristol v. Chapmin. 34 How. 140). On the motion the plaintiff may, by affidavits, contradict any fact stated in the petition, or state new facts (Denniston v. N. Y. & N. H. R. R. Co. 2 Abb. 278, 415; Disbrou v. Driggs, 8 Abb. 306, n.).
c. Form of order to show Cause, and for Removal.-See Carpenter v. N. Y. & N. H. R. R. Co. 11 How. 485, 486. Where an injunction has issued, the order may provide that it shall not operate to dissolve the injunction (Liddle v. Thatcher, 12 How. 294).
d. On a defendant complying with the statute requirement, the State court bas no discretion in the matter, but the cause.is removed, and any subsequent proceeding in the State court would be void for want of jurisdiction (see Livermore v. Jenks, 11 How. 479 ; Hill v. Henderson, 6 Sme. and M. 351). Except that any attachment which has been issued continues in force until the final judgment in the circuit court. The court has jurisdiction of any proceeding in relation to the attachment (Curpenter v. N. Y. & N. H. R. R. Co. 11
4. Filing Petition. The petition to remove must be filed at the time of, and not after, entering an appearance. If no appearance has been entered, and the plaintiff has taken no step towards entering judgment, the defendant may remove the cause, although the time to answer has expired (Carpenter v. N. Y. & N. H. R. R. Co. 11 How. 481; Redmond v. Russell, 12 Johns. 153; Roberts 1. Cannington, 2 Hall, 649).
f. Proceedings after Order for Removal. After the order is made, the defendant is to perfect the proceedings by appearing in the circuit court before the next term of that court, and entering special bail where an order of arrest had issued in the State court, and filing copies of the process (Martin v. Kanouse, 1 Blatchf. C. C. R. 149), and the plaintiff must file a new declaration in the circuit court (Clarke v. Protection Insurance Co. id. 150). After removal, all proceedings must be according to the rules of the court into which the cause is removed, the code has no application to such causes (Suydam v. Ewing, 1 Code Rep. N. 8. 294).
g. It seems a State court cannot entertain a motion to vacate an order of removal to the U. S. courts after the cause bas been transmitted to the circuit court. The appropriate place for such a motion, which, in effect, is to remand the cause to the State court, is in the forum where the cause is pending (Distrou v. Driggs; and see Jones v. Sevard, 26 How. 436).
h. On the removal of a cause, certified copies of the process and papers by which the suit was commenced in the State court, should be sent to and entered in the United States court (Martin v. Kanouse, 1 Blatch. C. C. Rep. 149). On the entry of such copies the plaintiff must file a new declaration in the United States courts (Clarke v. Protection Ins. Co. id. 150). Can the United States court send the cause back to the State court ? (Van Zandt v. Maxwell, 2 id. 421).
1. There can be no review in the court of appeals of an order at chambers not appealed from in the court below, denying a motion to remove (Kanouse v. Ma tin, 6 How. 240; Illius v. N. Haven R. R. Co. 13 N. Y, 597); semble, such an order does not involve a “substantial right” (id.), and doubted if order for removal can be reviewed at general term (Fargo v McVickar, 38 How. 1).
$ 18. (Am'd 1849.) General terms.
General terms.—This section is abrogated by laws 1870, ch. 408. This law abrogates all general terms of the supreme court and divides the State into four departments. The first to consist of the first judicial district, the second of the second judicial district, the third of the third, fourth, and sixth judicial districts, and the fourth of the fifth, seventh and eighth judicial districts. General terms are to be held in New York on first Mondays in January, February, April, June, September and November; in Brooklyn, on second Tuesdays in January, April, September and December; in Poughkeepsie on second Tuesday in June. In third department: in Albany first Tuesdays in February and October; in Plattsburgh on first Tuesday in July; in Elmira on first Tuesdays in April and September; in Binghamton on first Tuesdays in June and December; in Ogdensburgh on first Tuesday in November. In fourth department : in Syracuse on first Monday in May and second Monday in November; in Oswego on first Monday in October; in Rochester on first Mondays in January, March and September; in Buffalo on first Mondays in February and June. Such general terms have all the powers of pre-existing general terms, and all laws relating to general terms not inconsistent with the constitution and that act apply to the new general terms. Causes and matters in the new general terms are to be entitled in the supreme court. The associate justices designated to any department may sit in any other department. The governor may appoint extraordinary general terms.
The general term is an appellate court, and stands in the same relation to the special term as an appellate court does to courts of original jurisdiction (Yates v. The People, 6 Johns. 334; Harris v. Clark, 10 How. 415); and see Brotherson v. Consalus, 28 How. 117; Opening Seventh Avenue, 29 How. 180). a. Although there are general terms and special terms of the
supreme court, there is but one supreme court (Ayrte v. Covill, 9 How. 573; Corning v. Pouers, ib. 54; Gracie v. Freeland, 1 N. Y. 228; Mason v. Jones, 1 Code Rep. N. S. 338). The special term has jurisdiction to set aside an order made at general term on a default or on the ground of any irregularity in making the order (id.), but not to modify a general term judgment (Sheldon v. Williams, 52 Barb. 183).
On an appeal to the general from the special term, the special term has no authority to entertain or decide a motion to dismiss the appeal. Such a motion can only be heard at a general term (Harris v. Clark, 10 How. 415).
See, further, note to section 20, infra.
$ 19. Judgment, how given.
This section is also abrogated by Laws 1870, ch. 408, s. 6, which provide that the concurrence of two justices shall be necessary to pronounce a decision. If two do not concur a re-argument may be ordered. In case of such disagreement, if one of the three justices shall not be qualified to sit, the cause may be directed to be heard in another department.
$ 20. (Am'd 1849.) Special terms, &c.
There shall be at least two terms of the circuit court and court of oyer and terminer held annually in each of the counties of this State, and as many more terms thereof, and as many special terms, as the judges of each judicial district shall appoint therein; but at least one special term shall be held annually in each of said counties. Fulton and Hamilton shall be considered one county for the purposes of this section.
a. Power of Court.-The distinction between the power of the court at special and general terms was discussed in the case of Gracie v. Freeland, 5 N. Y. 238, and again in Mason v. Jones, 1 Code Rep. N. S. 338 ; Anon. 10 How. 353; Tracy v. Talmage, 1 Abb. 463. The special term is the supreme court as well as the general term; and, unless the law or the constitution points out a limit, it has the same powers. The special term now hears every question, except on appeal, that could come before the general term—questions as to the opening of streets, as to granting mandamus or certiorari ; and has even quashed a certiorari allowed ex parte at the general term, and its decision was not appealed from. An application to amend a judgment at general term, for irregularity merely, may be made at special term (De Agreda v. Mantel, 1 Abb. 133; Corning v. Powers, 9 How. 54); but the special term cannot, on motion, set aside as erroneous a judgment entered on report of a referee (Dana v. Howe, 13 N. Y. 308).
See note to section 18, ante.
$ 21. (Am'd 1849.) Circuit and oyer and terminer together.
Circuit courts, and courts of oyer and terminer, shall be held at the same places, and commenced on the same day.
$ 22. (Am'd 1849.) Times and places of holding court.
The governor shall, on or before the first day of May, 1848, by appointment in writing, designate the times and places of holding the general and special terms, circuit courts, and courts of over and terminer, and the judges by whom they shall be held; which appointment shall take effect on the first day of July thereafter, and shall continue until the thirty-first day of December, 1849. The judges of the supreme court of each district, shall, in like manner, at least one month before the expiration of that time, appoint the times and places of holding those courts for two years, commencing on the first day of January, 1850, and so on, for every two succeeding years, in their respective districts.
Modified by laws 1870, ch. 408.
$ 23. Extraordinary terms, &c.
The governor may also appoint extraordinary general and special terms, circuit courts, and courts of oyer and terminer, whenever, in his judgment, the public good shall require it.
b. Transfer of causes.—Whenever an action in the supreme court cannot be brought to argument and decision in the district where the same is pending, by reason of the justices of such district, or any of them, having been employed as counsel, or being interested therein, or of kin to the parties or any of them, the court may, upon special motion, order such action to be brought to argument in any adjoining district to be specified in such order ; and then such cause shall be heard and decided in such district (Laws of 1850 p. 20). Laws 1870, ch. 408, s. 7, give power to governor to assign justices to hold circuit courts, special terms and courts of oyer and terminer; and s. 7—the governor may designate one or more of the judges of the superior court of the city of New York or of the court of common pleas of the city and county of New York to hold circuits and special terms of the supreme court in New York city; and s. 14 empowers the governor to appoint extraordinary general terms, circuit courts, special terms and courts of oyer and terminer.
See section 459, post.
§ 24. (Am'd 1849, 1851, 1862.) Terms, where held. Adjournments.
The places appointed within the several counties for holding the general and special terms, circuit courts, and courts of oyer and terminer, shall be those designated by statute for holding county or circuit courts. If a room for holding the court in such place shall not be provided by the supervisors, it may be held in any room provided for that purpose by the sheriff, as prescribed by section twenty-eight.
General and special terms of the supreme or county courts, and circuit courts and courts of oyer and terminer, may be adjourned to be held on any future day, by an entry to be made in the minutes of the court ; and juries may be drawn and summoned for an adjourned circuit or county court, or an adjourned court of oyer and terminer, and causes may be noticed for trial at an adjourned circuit or county court, in the same manner as if such courts were held by original appointment.
And special terms may be adjourned to be held at a future day at the chambers of any justice of said court residing within the district, by an entry in the same manner, and then adjourn from time to time, as the justice holding the same shall order and direct.
Modified by laws 1870, ch. 408.
8 25. Publication of appointment.
Every appointment so made shall be immediately transmitted to the secretary of state, who shall cause it to be published in the newspaper, printed at Albany, in which legal notices are required to be inserted, at least once in each week, for three weeks before the holding of any court in pursuance thereof. The expense of the publication shall be paid out of the treasury of the State.
$ 26. Inability of judge.
In case of the inability, for any cause, of a judge assigned for that purpose, to hold a special term or circuit court, or sit at a general term, or preside at a court of oyer and terminer, any other
, judge may do so.
a. Presiding judge.-The justice appointed to preside at a general term, in the absence of the presiding justice, may preside during the whole term, and not merely during the absence of the presiding justice (The People v. Hicks, 15 Barb. 153); and a justice of the supreme court, while a judge of the court of appeals, may preside in a court of oyer and terminer, or discharge any of the ordinary duties of a justice of the supreme court (McCarron v. The People, 13 N. Y. 74).
Judge not to review his own decision.—No judge or justice to sit at a general term, or in court of appeals, in review of a decision made by him, or by any court of which he was at the time a sitting member (Const. art. vi, s. 8).
c. Affinity of judge.-When a judge is disqualified by reason of his affinity to one of the parties to the suit (N. Haven R. R. v. Schuyler, 28 How. 187).
$ 27. Business out of court. Proceedings in first district.
 The judges shall, at all reasonable times, when not engaged in holding court, transact such other business as may be done out of court.
 Every proceeding commenced before one of the judges in the first judicial district, may be continued before another, with the same effect as if commenced before him.
d. Judge at Chambers.-Unless a distinction is made in a statute' between the powers of a judge and those of the court, the judge has the same powers as the court (Smeeton v. Collier, 1 Exch. 459); but if the distinction is made by the statute, then a judge cannot exercise any power which is conferred on the court (Clarke v. East India Co. 2 Bail Court Rep. 320). A judge of the supreme court, like any other officer, when acting out of court is an officer of limited jurisdiction. He may do just what the legislature has authorized him to do, and whatever he does more than this is done without jurisdiction (Bangs v. Selden, 13 How. 376; and see Reg. v Sewell, 6 Law Times, 191). The justices of the supreme court, although elected in districts, possess co-ordinate powers throughout the State (Const. art. vi. s. 6), and have the powers vested in vice-chancellors and judges of the supreme court prior to July, 1847 (Laws of 1849, p. 27; and see Garcie v. Sheldon, 3 Barb. 232; Aymer v. Chace, 1 Code R. N. S. 333).
A judge at chambers, on an application under section 247, may make either an absolute or a conditional order, precisely as at special term (Witherspoon v.Van Dolar, 15 How. 266).
In the first judicial district a motion to open a judgment and let defendants in to defend, may be made to a justice out of court (Louber v. Mayor of N. Y. 5 Abb. 325), and so may a motion for a guardian ad litem in a partition suit (Disbrow v. Folger, 5 Abb. 53). And generally in the first district, all motions, except for new trials, may be made at chambers; and this includes a motion for an allowance (Main v. Pope, 16 How. 271).